Com. v. Handfield, E. ( 2016 )

J. S38010/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
EARL CALVIN HANDFIELD, II, : No. 2582 EDA 2015
:
Appellant :
Appeal from the PCRA Order, July 28, 2015,
in the Court of Common Pleas of Chester County
Criminal Division at No. CP-15-CR-0004908-2007
BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 20, 2016
Earl Calvin Handfield, II, appeals from the July 28, 2015 order of the
Chester County Court of Common Pleas denying his first petition under the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court provided the following facts and procedural history:
The Commonwealth’s theory of the case, as
evidenced from the testimony provided at trial, is
that [appellant] murdered Corey Jennings on
October 19, 2005 in retaliation for Mr. Jennings’
having earlier that summer stolen a gold chain from
around [appellant’s] neck in an altercation between
[appellant,] Duron Peoples, Francis Washington, and
Mr. Jennings. As part of its case-in-chief, the
Commonwealth relied on the testimony of the
aforementioned David Christopher Johnson, a/k/a
“Science,” who testified, as part of a plea agreement
with the Commonwealth, that he was with
[appellant] at the time of the murder and that
[appellant] confessed to him that he killed Corey
Jennings and on the testimony of [appellant’s]
J. S38010/16
former girlfriend, Adrienne Beckett, to whom
[appellant] also confessed and who helped him
dispose of the murder weapon in Rising Sun,
Maryland, and who was caught in a wiretapped
conversation admitting to perjury before the
Grand Jury and attempting to suborn it from another
Grand Jury witness, Mr. Johnson’s girlfriend, Ataya
Shabazz. At trial, the Commonwealth presented
witnesses who testified that Mr. Peoples placed
[appellant’s] stolen chain inside Corey Jennings’
casket at the funeral.
[Appellant’s] trial counsel, Joseph P. Green,
Jr., Esquire, represented both Duron Peoples and
[appellant] during the Grand Jury investigation into
Mr. Jennings’ death and [appellant’s] subsequent
criminal trial. Duron Peoples did not testify either
before the Grand Jury or at [appellant’s] trial. The
Commonwealth had, during the Grand Jury
proceedings, expressed an interest in calling
Mr. Peoples as a witness, and had filed a motion to
disqualify Mr. Green from representing both
Mr. Peoples and [appellant] before that body.
Mr. Green, for his part, filed a motion to quash the
subpoena directed towards Mr. Peoples. The
Commonwealth, Mr. Green and Mr. Peoples appeared
before the Supervising Grand Jury Judge to litigate
these Motions. Mr. Peoples testified at this hearing
that he wished to [retain] Mr. Green as his counsel.
Mr. Green then advised the Supervising Grand Jury
Judge that if Mr. Peoples were called as a witness,
Mr. Peoples would invoke his Fifth Amendment
privilege against self-incrimination. The Supervising
Grand Jury Judge took the parties’ motions under
advisement. However, subsequent to this meeting,
the Commonwealth re-evaluated its position and
decided not to call Mr. Peoples as a witness. Both
the present attorney for the Commonwealth and
present PCRA counsel have represented to the Court
that, due to the Commonwealth’s final decision not
to call Mr. Peoples[] as a witness, the litigation
concerning the Commonwealth’s motion to disqualify
Mr. Green as counsel became moot and no Order
-2-
J. S38010/16
was ever entered with respect thereto by the
Supervising Grand Jury Judge.
A few months after [appellant’s] conviction and
sentencing, [appellant] met Mr. Peoples at a state
prison. After their meeting, [appellant] obtained
from Mr. Peoples two signed Affidavits stating that
the altercation at the Turkey Hill[1] in the summer of
2005 was solely between [appellant] and Mr. Peoples
and that Corey Jennings had nothing to do with it.
In these Affidavits, among other things, Mr. Peoples
states that it was he who stole [appellant’s] chain,
not Mr. Jennings, and asserts that the chain he
placed into Mr. Jennings’ casket was not the same
one that had belonged to [appellant.] In other
words, he is attempting to undermine the
Commonwealth’s proof of motive and their theory of
the case. In these affidavits, Mr. Peoples claims that
he would have been willing and able to testify at
[appellant’s] trial, but states that trial counsel Green
informed him that [appellant] did not wish to utilize
him as a witness.
Again following his conviction and sentence,
[appellant] obtained from David Christopher Johnson
a signed Affidavit claiming that his trial testimony
was a lie. In this Affidavit, Mr. Johnson denied
having been with [appellant] at the time of
Mr. Jennings’ murder and states that he lied at trial
in order to procure an advantageous plea deal with
the Commonwealth. However, after Mr. Johnson’s
Affidavit surfaced, the Commonwealth initiated an
investigation into the allegations made by
Mr. Johnson. Chester County Detective Thomas J.
Goggin interviewed Mr. Johnson. According to
Detective Goggin’s subsequent report, Mr. Johnson
disclaimed the statements made in his December 4,
2014 Affidavit, stating that he was forced to sign
that instrument at knife point by two fellow inmates
he stated he believed were acting at [appellant’s]
behest.
1
Turkey Hill is a convenience store.
-3-
J. S38010/16
PCRA court opinion, 7/28/15 at 4-8.
The PCRA court also provided the following additional procedural
history as it relates to the appeal before us:
On September 9, 2013, [appellant] filed a
pro se first timely PCRA petition. By Order dated
September 12, 2013, [the PCRA court] appointed
PCRA counsel to represent [appellant] in connection
with his first timely PCRA petition. After several
changes in PCRA counsel and continuances to
accommodate them, present counsel filed an
Amended PCRA petition on [appellant’s] behalf on
August 7, 2014. The Commonwealth filed its Answer
to [appellant’s] Amended PCRA petition on
September 26, 2014. [Appellant] replied to the
Commonwealth’s Answer on December 17, 2014.
On January 6, 2015, [appellant] moved to
supplement his PCRA petition. By Order dated
February 10, 2015, [the PCRA court] granted
[appellant] leave of court to amend his PCRA petition
with the supplemental petition he filed on January 6,
2015. The Commonwealth filed an Answer to
[appellant’s] Supplemental PCRA Petition on
January 27, 2015. [Appellant] replied to the
Commonwealth’s Answer on March 20, 2015. On
April 2, 2015, [appellant] again moved to
supplement his PCRA petition. By Order dated
April 13, 2015, [the PCRA court] granted [appellant]
leave of court to amend his PCRA petition in
accordance with the motion he filed on April 2, 2015.
During the course of these filings, on
March 10, 2015 the Commonwealth filed a Motion
in Limine seeking to admit prior immunized
testimony of [appellant] given before the Chester
County Thirteenth Investigating Grand Jury.
[Appellant] responded to this Motion on March 26,
2015. On March 24, 2015, the Commonwealth filed
a Memorandum of Law wherein the Commonwealth
made a motion in limine to exclude from
consideration the December 4, 2014 Affidavit of one
David Christopher Johnson attached to [appellant’s]
-4-
J. S38010/16
January 6, 2015 Motion for Leave to Amend [PCRA]
Petition as Exhibit A.
On March 27, 2015 and April 6, 2015, [the
PCRA court] held an evidentiary hearing on
[appellant’s] PCRA Petition, as amended and
supplemented by counsel as discussed above. At the
first of these two PCRA hearings, [the PCRA court]
granted the Commonwealth’s motion in limine to
exclude Mr. Johnson’s December 4, 2014 Affidavit
from consideration. At the second hearing, the
Commonwealth withdrew its Motion in limine
seeking to admit portions of earlier immunized
testimony given by [appellant] before the Grand
Jury. At the conclusion of the April 6, 2015 hearing,
[the PCRA court] took [appellant’s] first PCRA
petition as amended and supplemented under
advisement.
PCRA court opinion, 7/28/15 at 1-2.
On July 28, 2015, the PCRA court dismissed appellant’s PCRA petition.
Appellant filed a timely notice of appeal on August 24, 2015. On August 28,
2015, the PCRA court ordered appellant to produce a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant
filed his concise statement on October 12, 2015, and the PCRA court filed an
opinion pursuant to Pa.R.A.P. 1925(a) on October 21, 2015.
Appellant raises the following five issues for our review:
I. Did the lower court err in denying appellant’s
claim that he should receive a new trial based
on the Commonwealth, in violation of Brady v.
Maryland,[2] failing to provide to the defense
a video interview of a critical potential defense
witness whose testimony offered compelling
substantive and impeachment evidence and
2
Brady v. Maryland, 373 U.S. 83 (1963).
-5-
J. S38010/16
despite counsel specifically requesting the
evidence in question prior to trial?
II. Did the lower court err in denying appellant’s
claim that his conviction resulted from the
ineffective assistance of his trial counsel due to
counsel failing to investigate a witness whose
testimony would have served to substantially
undermine the Commonwealth’s case?
III. Did the lower court err in denying appellant’s
claim that his trial counsel was ineffective due
to a conflict of interest that existed between
counsel, appellant, and another of counsel’s
clients, Duron Peoples; a potential fact witness
who possessed important, first-hand
knowledge about the facts underlying
appellant’s case?
IV. Did the lower court err in denying appellant’s
claim that his trial counsel was ineffective for
failing to investigate his own client, Duron
Peoples, with respect to one of the central
evidentiary issues in appellant’s case?
V. Did the lower court err in denying appellant’s
claim that his discovery following his conviction
that an item of evidence presented by the
Commonwealth at trial -- specifically, a
necklace exhumed from the casket of the
deceased, which the Commonwealth claimed
was the proceeds of an earlier robbery of
appellant and provided the motive for the
murder in his case -- was not the necklace the
Commonwealth claimed it to be?
Appellant’s brief at 4 (capitalization omitted).3
3
At the outset, we note that the Pennsylvania Rules of Appellate Procedure
limit a principal brief to 14,000 words, unless the brief does not exceed
30 pages. Pa.R.A.P. 2135(a)(1). Where the brief exceeds 30 pages, a
certificate of compliance with the 14,000 word-count limit must be filed. Id.Here, appellant’s principal brief is 80 pages in length--nearly three times the
-6-
J. S38010/16
PCRA petitions are subject to the following standard of review:
“[A]s a general proposition, we review a denial of
PCRA relief to determine whether the findings of the
PCRA court are supported by the record and free of
legal error.” Commonwealth v. Dennis, 609 Pa.
442, 17 A.3d 297, 301 (Pa. 2011) (citation omitted).
A PCRA court’s credibility findings are to be accorded
great deference, and where supported by the record,
such determinations are binding on a reviewing
court. Id. at 305 (citations omitted). To obtain
PCRA relief, appellant must plead and prove by a
preponderance of the evidence: (1) his conviction or
sentence resulted from one or more of the errors
enumerated in 42 Pa.C.S. § 9543(a)(2); (2) his
claims have not been previously litigated or waived,
id. § 9543(a)(3); and (3) “the failure to litigate the
issue prior to or during trial . . . or on direct appeal
could not have been the result of any rational,
strategic or tactical decision by counsel[.]” id.
§ 9543(a)(4). An issue is previously litigated if “the
highest appellate court in which [appellant] could
have had review as a matter of right has ruled on
the merits of the issue[.]” Id. § 9544(a)(2). “[A]n
issue is waived if [appellant] could have raised it but
failed to so before trial, at trial, . . . on appeal or in a
prior state postconviction proceeding.” Id.
§ 9544(b).
Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015).
Under the PCRA, an individual is eligible for post-conviction relief if the
conviction was the result of “[a] violation of the Constitution of this
maximum page length prescribed by Rule 2135(a)(1). Counsel, however,
filed a petition pursuant to Rule 2135(a)(1) requesting permission to exceed
the brief’s maximum word count and page limit. See DeMasi v. DeMasi,
530 A.2d 871, 874 n.1 (Pa.Super. 1987), appeal denied, 539 A.2d 811 (Pa.
1988). We will grant appellant’s petition and consider all issues on their
merits.
-7-
J. S38010/16
Commonwealth or the Constitution or laws of the United States which, in the
circumstances of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken
place.” 42 Pa.C.S.A. § 9543(a)(2)(i).
The PCRA also permits relief when a conviction is the result of
“ineffective assistance of counsel which, in the circumstances of the
particular case, so undermined the truth-determining process, that no
reliable adjudication of guilt or innocence could have taken place.” Id. at
§ 9543(a)(2)(ii).
I.
In his first issue on appeal, appellant avers that the Commonwealth
failed to provide a video interview of Willie Suber, which appellant alleges,
contains exculpatory information and was otherwise valuable to appellant.
(Appellant’s brief at 29.)
In interpreting [] federal precedent [], this Court has
explained that, in order to establish a Brady
violation, a defendant must show that: (1) evidence
was suppressed by the state, either willfully or
inadvertently; (2) the evidence was favorable to the
defendant, either because it was exculpatory or
because it could have been used for impeachment;
and (3) the evidence was material, in that its
omission resulted in prejudice to the defendant. See
Commonwealth v. Lambert, 584 Pa. 461, 471,
884 A.2d 848, 854 (2005); Commonwealth v.
Collins, 585 Pa. 45, 68, 888 A.2d 564, 577-78
(2005). However, “[t]he mere possibility that an
item of undisclosed information might have helped
the defense, or might have affected the outcome of
the trial, does not establish materiality in the
-8-
J. S38010/16
constitutional sense.” Commonwealth v.
Chambers, 570 Pa. 3, 29, 807 A.2d 872, 887
(2002) (citation omitted and emphasis added).
Rather, evidence is material “only if there is a
reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding
would have been different. A reasonable probability
is a probability sufficient to undermine confidence in
the outcome.” Id. at 29, 807 A.2d at 887-88
(quoting [United States v. Bagley, 473 U.S. 667,
682 (1985)]).
Commonwealth v. Willis, 46 A.3d 648, 656 (Pa. 2012) (plurality). “When
conducting this analysis in the PCRA context, a defendant must establish
that the alleged Brady violation ‘so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken
place.’” Commonwealth v. Haskins, 60 A.3d 538, 547 (Pa.Super. 2012),
appeal denied, 78 A.3d 1090 (Pa. 2013), citing 42 Pa.C.S.A.
§ 9543(a)(2)(i); Commonwealth v. Copenhefer, 719 A.2d 242, 259 (Pa.
1998), cert. denied, 528 U.S. 830 (1999). Our supreme court has also
held that, “no Brady violation occurs where the parties had equal access to
the information or if the defendant knew or could have uncovered such
evidence with reasonable diligence.” Commonwealth v. Morris, 822
A.2d 684, 696 (Pa. 2003), citing Commonwealth v. Paddy, 800 A.2d 294,
305 (Pa. 2002) (emphasis added).
The record reflects that appellant’s trial counsel was first made aware
that Suber’s interview with the police was videotaped when he received,
prior to trial, the police’s typed interview summary, which alluded to the
-9-
J. S38010/16
existence of a tape of the interview. (Notes of testimony, 3/27/15 at 132.)
Because trial counsel became aware of the tape prior to trial, in order to
preserve a Brady claim for the purposes of PCRA review, the claim would
have had to have been raised either before or during trial, during unitary
review, direct appeal, or a prior state post-conviction proceeding.
42 Pa.C.S.A. § 9544(b). Failure to do so would result in waiver for the
purposes of PCRA review. Id. A PCRA petitioner may circumvent waiver
only by demonstrating an ineffectiveness of counsel in waiving the issue.
Commonwealth v. Albrecht, 720 A.2d 693, 700 (Pa. 1998).
After a careful review of the record, at no point prior to his PCRA
petition does appellant raise a Brady claim before the court either before or
during trial, during unitary review, or on direct appeal. Contrary to the next
three issues before us on appeal, appellant did not raise the Brady claim as
a layered ineffective assistance of counsel claim. Accordingly, the issue is
waived and appellant is not entitled to relief.
II.
In his next three issues for our review, appellant avers that his trial
counsel, Joseph Green, Esq., provided ineffective assistance of counsel. For
his second issue, appellant specifically avers that Attorney Green provided
ineffective assistance due to his alleged failure to investigate Suber as a
potential defense witness. (Appellant’s brief at 44.)
- 10 -
J. S38010/16
When considering whether counsel was ineffective, we are governed
by the following standard:
[C]ounsel is presumed effective,
and to rebut that presumption, the PCRA
petitioner must demonstrate that
counsel’s performance was deficient and
that such deficiency prejudiced him.
Strickland v. Washington, 466 U.S.
668 (1984). This Court has described
the Strickland standard as tripartite by
dividing the performance element into
two distinct components.
Commonwealth v. Pierce, 527 A.2d
973, 975 (Pa. 1987). Accordingly, to
prove counsel ineffective, the petitioner
must demonstrate that (1) the
underlying legal issue has arguable
merit; (2) counsel’s actions lacked an
objective reasonable basis; and (3) the
petitioner was prejudiced by counsel’s
act or omission. Id. A claim of
ineffectiveness will be denied if the
petitioner’s evidence fails to satisfy any
one of these prongs.
Commonwealth v. Busanet, 54 A.3d 34, 45 (Pa.
2012) (citations formatted). Furthermore, “[i]n
accord with these well-established criteria for review,
[an appellant] must set forth and individually discuss
substantively each prong of the Pierce test.”
Commonwealth v. Fitzgerald, 979 A.2d 908, 910
(Pa.Super. 2009).
Commonwealth v. Perzel, 116 A.3d 670, 671-672 (Pa.Super. 2015).
When evaluating whether counsel was ineffective for failing to
investigate a potential witness, we are bound by the following standard:
The duty to investigate, of course, may include a
duty to interview certain potential witnesses; and a
prejudicial failure to fulfill this duty, unless pursuant
- 11 -
J. S38010/16
to a reasonable strategic decision, may lead to a
finding of ineffective assistance. Recently
summarizing cases in Commonwealth v. Dennis,
597 Pa. 159, 950 A.2d 945 (2008), this Court stated
that:
These cases . . . arguably stand for the
proposition that, at least where there is a
limited amount of evidence of guilt, it is
per se unreasonable not to attempt to
investigate and interview known
eyewitnesses in connection with defenses
that hinge on the credibility of other
witnesses. They do not stand, however,
for the proposition that such an omission
is per se prejudicial.
Id. at 960 (citing Perry, supra; Commonwealth v.
Weiss, 530 Pa. 1, 606 A.2d 439, 442-43 (1992);
Commonwealth v. (Harold) Jones, 496 Pa. 448,
437 A.2d 958 (1981); Commonwealth v. Mabie,
467 Pa. 464, 359 A.2d 369 (1976)) (emphasis
omitted). Indeed, such a per se failing as to
performance, of course, does not make out a case of
prejudice, or overall entitlement to Strickland relief.
When raising a failure to call a potential witness
claim, the PCRA petitioner satisfies the performance
and prejudice requirements of the Strickland test
by establishing that:
(1) the witness existed; (2) the witness
was available to testify for the defense;
(3) counsel knew of, or should have
known of, the existence of the witness;
(4) the witness was willing to testify for
the defense; and (5) the absence of the
testimony of the witness was so
prejudicial as to have denied the
defendant a fair trial.
Commonwealth v. Washington, 592 Pa. 698, 927
A.2d 586, 599 (2007). To demonstrate Strickland
prejudice, the PCRA petitioner “must show how the
- 12 -
J. S38010/16
uncalled witnesses’ testimony would have been
beneficial under the circumstances of the case.”
Commonwealth v. Gibson, 597 Pa. 402, 951 A.2d
1110, 1134 (2008); see also Commonwealth v.
Chmiel, 585 Pa. 547, 889 A.2d 501, 546 (2005)
(“Trial counsel’s failure to call a particular witness
does not constitute ineffective assistance without
some showing that the absent witness’ testimony
would have been beneficial or helpful in establishing
the asserted defense.”).
Commonwealth v. Johnson, 966 A.2d 523, 535-536 (Pa. 2009).
We agree with the PCRA court’s finding that appellant’s claim is
without merit. Specifically, the PCRA court reached the following conclusion
that Suber’s testimony would not have been helpful to the defense at trial:
The Commonwealth’s probe of Willie Suber’s
testimony at the PCRA hearing obliterates
[appellant’s] claim that Mr. Suber’s testimony would
have been helpful to him. . . . [O]n
cross-examination Mr. Suber admitted that he was
not at his mother’s apartment for the entirety of the
evening on which Mr. Jennings was shot.[4] Thus,
he would not have known if someone came to or left
the apartment during the time that he was absent.
Willie Suber’s testimony would not have helped
[appellant] because his assertion that no one came
to or left Ms. Beckett’s apartment on the night of the
Jennings homicide would have been easily
discredited on cross-examination. [Appellant]
himself, when he identified Mr. Suber to trial counsel
Green, added the caveat that “I don’t know if he’s
useful.” [Appellant] cannot, on this record, claim
prejudice by counsel’s failure to find the fault with
Willie Suber’s testimony earlier.
PCRA court opinion, 7/28/15 at 33-34 (citations omitted).
4
Suber’s mother is Adrienne Beckett. (Notes of testimony, 3/27/15 at 207.)
- 13 -
J. S38010/16
Because there is support in the record for the PCRA court’s
determination of fact, we are bound to the lower court’s factual
determination. See Treiber, 121 A.3d at 444. Based on the PCRA court’s
factual determinations, we find that appellant has not met his burden in
proving that had Suber been investigated and called as a witness at trial, his
testimony would have been helpful in establishing appellant’s defense.
Accordingly, appellant’s claim is without arguable merit.
III.
For his third issue on appeal, appellant avers that Attorney Green
provided ineffective assistance of counsel because of an alleged conflict of
interest that existed as the result of Attorney Green’s concurrent
representation of appellant and Duron Peoples. (Appellant’s brief at 57.)
When considering whether counsel rendered ineffective assistance as a
result of dual representation, we are held to the following standard:
As our Court recently explained, a petitioner “cannot
prevail on a conflict of interest claim absent a
showing of actual prejudice.” Commonwealth v.
Weiss, [81 A.3d 767 (Pa. 2013)]; see also
Commonwealth v. Hawkins, 567 Pa. 310, 787
A.2d 292, 297 (2001) (offering that petitioner must
demonstrate that counsel’s prior representation of
Commonwealth witness adversely affected counsel’s
representation of petitioner under PCRA). We
further explained that, although prejudice is
presumed when there exists an actual conflict of
interest, this presumption is only applicable when
counsel actively represented conflicting interests.
Weiss, [81 A.3d at 794 n. 16]. Where counsel does
not actively represent conflicting interests, a claim
- 14 -
J. S38010/16
based upon the appearance of a conflict of interest
lacks merit. Id.
Commonwealth v. Reid, 99 A.3d 427, 442-443 (Pa. 2014) (citations
omitted). “To establish an actual conflict of interest hampered counsel,
[a petitioner] must show counsel actively represented conflicting interests
and the conflict adversely affected counsel’s performance.”
Commonwealth v. Solano, 129 A.3d 1156, 1168 (Pa. 2015), citing
Commonwealth v. Padilla, 80 A.3d 1238, 1248 (Pa. 2013) (citations
omitted), cert. denied, U.S. , 134 S.Ct. 2725 (2014).
In an attempt to establish that Attorney Green was actively
representing conflicting interests to the point that his performance was
adversely affected, appellant avers that Attorney Green’s dual representation
of appellant and Peoples prevented Attorney Green from calling Peoples as a
witness for the defense at trial. (See appellant’s brief at 71-72.)
Specifically, appellant alleges that Attorney Green was prevented from
calling Peoples as a witness because doing so would place Peoples in
jeopardy of facing potential criminal charges for his role in the incident at
Turkey Hill.
The record belies appellant’s averments. As noted in more detail
infra, Peoples had invoked his Fifth Amendment right to not incriminate
himself, and was accordingly unavailable to testify. As noted by the PCRA
court, Attorney Green’s “performance was not adversely affected by his dual
representation of [appellant] and Mr. Peoples. [Appellant] could not have
- 15 -
J. S38010/16
obtained a different result even if Mr. Peoples[] had been represented by
other counsel or had represented himself.” (PCRA court opinion, 7/28/15 at
45-46.) Because Peoples would have been unavailable to testify, regardless
of who was representing him based on his decision to exercise his Fifth
Amendment rights, appellant is unable to demonstrate an actual prejudice
as a result of Attorney Green’s dual representation of both appellant and
Peoples. Accordingly, we find appellant’s claim to be without merit.
IV.
In his fourth issue on appeal, appellant avers that Attorney Green
provided ineffective assistance for failing to investigate Duron Peoples as a
witness. (Appellant’s brief at 72.) Specifically, appellant alleges that
Attorney Green should have investigated Peoples regarding the necklace that
Peoples placed in Jennings’ casket and whether that necklace was the same
necklace that was stolen from appellant during the incident at Turkey Hill in
the summer of 2005. Appellant’s claim is without merit.
At the PCRA hearing, Attorney Green testified that Peoples told him
that Jennings had taken the chain from appellant. (Notes of testimony,
3/27/15 at 179-180.) Peoples’ account to Attorney Green corroborated the
theory that the Commonwealth presented at trial that appellant killed
Jennings as revenge for stealing his chain during the incident at Turkey Hill.
(See notes of testimony, 6/8/12 at 132.) When Peoples was subpoenaed to
appear before the grand jury investigating Jennings’ death, Attorney Green
- 16 -
J. S38010/16
testified that he advised Peoples to invoke his Fifth Amendment right against
self-incrimination by refusing to answer any questions about the case unless
the Commonwealth granted him immunity.5 (Notes of testimony, 3/27/15 at
180.) In his testimony at the PCRA hearing, Attorney Green discussed his
appearance with Peoples before the grand jury’s supervising judge, during
which Attorney Green recalled disclosing the following to the supervising
judge: “At sometime [sic] before the killing of Mr. Jennings there was a
meeting at the Turkey Hill located near 340 and 82. At that meeting
Mr. Jennings had taken from Mr. Handfield a chain that Mr. Handfield was
wearing.” (Id. at 178.) According to Attorney Green’s testimony, Peoples
never told him that the account he provided to the supervising judge was
inaccurate, and that Peoples had “communicated to [him] that Jennings had
taken the chain and it was not his, Peoples’ idea.” (Id. at 179.)
The PCRA court made the following finding of fact and credibility
determination:
As an after-the-fact recantation of [Peoples’]
previous position, the veracity of his testimony and
these Affidavits is inherently suspect.[Footnote 6]
Indeed, Mr. Peoples[] admitted at the PCRA hearing
that, at the time of the Grand Jury investigation into
Corey Jennings’ homicide, he refused to testify,
despite suggestions by county detectives that he
could help himself in other legal matters with which
he was involved. Mr. Peoples testified he told
detectives, “I don’t want to help nobody.” [(Notes of
5
Attorney Green advised Peoples to invoke his Fifth Amendment rights
because Peoples’ testimony regarding the incident at Turkey Hill may have
incriminated himself for robbery. (Id. at 116.)
- 17 -
J. S38010/16
testimony, 4/6/15 at 259-260.)] In his own
testimony at the PCRA hearing, Mr. Peoples
contradicted himself about his supposed willingness
to aid the defense at the time he was given the
opportunity to testify about his knowledge of the
Jennings homicide prior to charges being filed
against [appellant.] (Id.) Consequently, [the PCRA
court found] his post-trial narrative of the events
surrounding the Jennings homicide and his
assertions that he would have testified had he been
asked to be dubious at best and not worthy of
credence.
[Footnote 6:] Trial counsel testified that
the information [appellant] provided him
during the course of his representation of
[appellant] in connection with the
above-captioned matter corroborated
Mr. Peoples’ account that Corey Jennings
took the chain from [appellant], not
Mr. Peoples. ([Notes of testimony,
3/27/15 at 187-188.) Appellant] and
Mr. Peoples, whose statements to
counsel prior to and during the trial of
this matter, by counsel’s account,
coincided on all material points and
reflected Mr. Jennings’ responsibility for
the physical theft of [appellant’s] chain
cannot now be countenanced to profit
from manipulating the system by
coordinating their testimonies
post-conviction to assert a contrary
position.[6]
6
Indeed, Peoples’ recorded prison conversations, as read into the record at
the PCRA hearing, reflect a desire to “profit from manipulating the system”
by asserting a contrary position post-conviction. Peoples admitted to saying
the following in a recorded conversation with his girlfriend at the Chester
County Prison:
Because they are trying, the whole thing is, they’re
trying to say that boy Peen [Jennings] took [] Earl’s
necklace. . . . And I told them that. I said I told my
lawyer, like I want to tell them that I did that. . . .
- 18 -
J. S38010/16
Because the [PCRA court credits] the testimony of
Mr. Green over that of Mr. Peoples, [the PCRA court
finds] that there was no conflict between [appellant]
and Mr. Peoples prior to or during [appellant’s] trial,
such that there was no reason to call Mr. Peoples as
a witness in [appellant’s] trial because he could not
provide any testimony that would have been helpful
to the defense.
PCRA court opinion, 7/28/15 at 42-43 (citations omitted); see also id. at 48
(“[W]e do not credit Mr. Peoples’ PCRA testimony or Affidavits stating that
he would have been available and willing to testify on [appellant’s] behalf at
[appellant’s] 2009 trial, nor do we credit his testimony and Affidavits
concerning the substance of what he allegedly would have testified to . . .”).
As noted supra, we are bound by the PCRA court’s determination of
facts and credibility, so long as support for the PCRA court’s conclusions can
be found in the record. See Treiber, 121 A.3d at 444. Because there is
ample support in the record for the PCRA court’s factual findings and
credibility determinations, we are, therefore, bound to them. Accordingly,
we find that appellant’s claim that Attorney Green was ineffective for failing
He [Jennings] didn’t have nothing to do with this.
He didn’t do nothing about this s***. . . . He didn’t
know nothing about none of this. He was there,
yeah, but he had nothing to do with this s***. . . .
So that this time, so by me saying that, . . . [i]s
f***ing up their [the Commonwealth’s] whole
situation and by me telling them that the lawyer
knew that, because we both had the same lawyer.
Notes of testimony, 4/6/15 at 289-290.
- 19 -
J. S38010/16
to investigate Peoples as a potential witness is without merit. The record
indicates that Attorney Green did discuss the incident at Turkey Hill with
Peoples, and that Peoples’ account of the incident corroborated the
Commonwealth’s theory of the case.
V.
For his fifth and final issue for our review, appellant avers that Peoples’
later testimony regarding the necklace placed in the victim’s casket and
whether that particular necklace was the same one stolen from appellant
constitutes after-discovered evidence, which would warrant a new trial.
(Appellant’s brief at 76.) Because we determined that Attorney Green was
not ineffective for failing to investigate and call Peoples as a witness, we
must now consider whether Peoples’ changed statement constitutes
after-discovered evidence, which would warrant granting appellant a new
trial.
We have explained that when a petitioner is seeking
a new trial based on alleged after-discovered
evidence in the form of recantation testimony, the
petitioner must establish that: (1) the evidence has
been discovered after trial and it could not have
been obtained at or prior to trial through reasonable
diligence; (2) the evidence is not cumulative; (3) it
is not being used solely to impeach credibility; and
(4) it would likely compel a different verdict.
Commonwealth v. Johnson, 600 Pa. 329, 966
A.2d 523, 541 (2009); Commonwealth v.
Washington, 592 Pa. 698, 927 A.2d 586, 595-96
(2007); Commonwealth v. D’Amato, 579 Pa. 490,
856 A.2d 806, 823 (2004); Commonwealth v.
Wilson, 538 Pa. 485, 649 A.2d 435 (1994).
Further, the proposed new evidence must be
- 20 -
J. S38010/16
producible and admissible. [Commonwealth v.
Scott, 470 A.2d 91, 93 (Pa. 1983)].
Commonwealth v. Smith, 17 A.3d 873, 887 (Pa. 2011), cert. denied,
U.S. , 133 S.Ct. 24 (2012).
In regards to recantation testimony, our supreme court has instructed
the following:
Recantation testimony is extremely unreliable.
Commonwealth v. McCracken, 540 Pa. 541, 659
A.2d 541 (1995); Commonwealth v. Nelson, 484
Pa. 11, 398 A.2d 636 (1979); Commonwealth v.
Coleman, 438 Pa. 373, 264 A.2d 649 (1970). When
the recantation involves an admission of perjury, it is
the least reliable form of proof. Coleman. The trial
court has the responsibility of judging the credibility
of the recantation. Nelson. Unless the trial court is
satisfied that the recantation is true, it should deny a
new trial. Nelson; Coleman. An appellate court
may not disturb the trial court’s determination
absent a clear abuse of discretion. Nelson.
Commonwealth v. Henry, 706 A.2d 313, 321 (Pa. 1997).
Here, appellant’s affidavits are synonymous with recantation testimony
because they equate to a change in testimony. The PCRA court, as noted
above, judged the credibility of Peoples’ recantation, and in so doing,
determined that Peoples’ recantation was not credible. Specifically, the
PCRA court found neither Peoples’ affidavits7 nor his testimony during the
PCRA hearing to be credible. As we noted above, the record provides ample
7
Peoples executed two affidavits in which he indicated that he was willing to
testify at appellant’s trial regarding the incident at Turkey Hill, and that the
incident at Turkey Hill was only between Peoples and appellant, and that
Jennings was not involved. (Notes of testimony, 4/6/15 at 268-269.)
- 21 -
J. S38010/16
support for the PCRA court’s determination of credibility. Accordingly, there
is no clear abuse of discretion; therefore, we cannot disturb the PCRA court’s
determination. As a result, appellant’s after-discovered evidence claim is
without merit.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2016
- 22 -